Under the Local Government Act 1989, Council can discontinue roads and lanes and sell the land if Council considers it appropriate.
A lane is classified as a road for the purposes of the legislation. A right-of-way is another term often used for a lane on old plans of subdivision, emphasising that it gives people the right to travel over land that is not owned by them in order to gain access to their own property.
Council investigates requests from adjacent landowners for closure and purchase of roads in accordance with Council’s Discontinuance and Disposal of Roads Policy.
What are roads?
Roads can include streets, rights of way (lanes), passages, bridges, footpaths, kerbing and public highways. Roads are created in several ways (included but not limited to):
- as a requirement for planning approval in subdivision;
- declaration by a council or VicRoads pursuant to the Road Management Act 2004
- by the introduction of a planning overlay reserving the land for public purpose
- under common law where there is an intention by a landowner to make land a road.
Who owns and controls roads?
- Crown Land set aside as a road is known as a Government Road. The landowner is the Crown and councils may have the ‘care and management’.
- A municipality can declare a Government Road to be ‘unused’ in consultation with Department of Land Water Planning and Environment’s (DELWP) and the responsibility transfers to DELWP.
- Land subdivided prior to 1988 often left roads in the name of the original sub divider. The Subdivision Act 1988 caused new sub divisional roads to become Council property. In 1993, the Local Government Act 1989 was amended and all freehold roads became Council property.
- Arterial roads (highways and most main roads) are owned and managed by VicRoads or Regional Roads Victoria.
When can Council discontinue a road?
The Local Government Act 1989 enables Council to discontinue and sell a road under its control, where Council forms the opinion that it is not ‘reasonably required for public use’. In general, this means that Council will not close a road if it is being used as a public road and if its closure will unduly disadvantage adjacent landowners to the road. Council must be satisfied that the road is not required for community use or other public purpose at present or in the foreseeable future.
An application for a road discontinuance must be in writing and forwarded to Manager Engineering Projects and Assets. The application should include:
- A copy of a plan clearly showing the extents of the road proposed to be discontinued and show any vehicular or pedestrian access points.
- A copy of the title for the land to be (if required) consolidated into once sold.
What is involved in discontinuing a road?
When a road discontinuance request is received, Council officers assess the information provided and carry out preliminary investigations to gauge the suitability of the road for discontinuance and sale.
Details of the proposal are referred to service authorities for comment and consent to the proposal.
If, following these preliminary investigations, Council considers that the proposal for discontinuance and sale is feasible, the land will be allocated and valued in accordance with Council’s guidelines and procedures.
Before Council decides whether or not to discontinue the road and sell the land to an abutting owner/s, the proposal must be publicly advertised inviting submissions. Submissions are invited from the public and must be considered by Council in accordance with legislative provisions.
If, having considered any submissions, Council forms the view that the road is ‘no longer reasonably required for public use’, Council can resolve to discontinue the road and either sell or retain the land.
Notice of Council’s resolution is then published in the Victorian Government Gazette to give effect to the discontinuance. Council can then proceed to offer the land for sale to an abutting owner.
This statutory procedure is often a lengthy process and can take up to 18 months to complete.
How much will it cost?
Council has an obligation to dispose of public land in the best interests of the community and achieve the best outcome, both financial and non-financial for Council and the community.
Council will usually only sell land based on current market value in accordance with Council policy and the general principles of the Local Government Best Practice Guideline for the Sale/Exchange of Land 2008.
The purchaser will bear all costs , which can include survey, legal and planning costs.